From my latest Solicitors Journal column “Family Business”, 4/07/2013.
Being ‘conflicted out’ of a case is a challenge you must deal with quickly and cleanly, before it goes too far says Marilyn Stowe
Thirty years as a family lawyer has taught me that divorce can have a transformative effect. Otherwise sensible people can turn into hot-heads, and take actions ranging from the inadvisable to the illegal. When a newspaper asked me recently to share some of the “dirtiest divorce tricks” I have encountered in my career, there were many from which to choose: from the beloved Steinway piano, sold by the wife of a pianist without her husband’s knowledge, to the case of a woman who hired a hitman, in the hope of bringing her acrimonious divorce to a swift end.
One of the most common “dirty tricks”, however, is not hot-headed at all and for this reason, it stands out from the others. This is the practice of “conflicting out”: when we cannot advise a client because of work with another person involved in the case, or other conflicts of interest. The principle sounds so dry when written down but, as many of my fellow family solicitors will know, the practice can be anything but. Fortunately, it is one that we are often in a position to do something about – if we get wise to the ploy in good time.
I have known spouses to attempt to conflict out every solicitor in the locality. I have known of some solicitors who advise clients to conflict out other solicitors against whom they would rather not be up against in court. On one occasion, a man telephoned ahead for an emergency appointment and was prepared to fly over from the Caribbean to see me. Another time a client paid a retainer, never turned up and divorced offshore. My favourite: the man who thought he had successfully conflicted me out…. by consulting a lawyer at my husband’s offices. Sadly for him our two firms, Stowe Family Law and Grahame Stowe Bateson, are completely separate.
False names do preserve confidentiality (and any ill intentions), but they also interfere with conflict checks. Sometimes clients give false names and details when arranging first appointments – for example if they are well-known in the local area or in the media. I recently saw a well-known media presenter who had booked in under a false name. It didn’t occur to her that our conflict checks had been circumvented and it could have proved tricky at out meeting if her husband had already been to see us.
Sometimes people contact us, knowing from the outset that if they give their real name, we will refuse to see them, because their spouse is or was a client of the firm and may even be a personal friend. It surprises me how people expect solicitors to have no principles at all, and accept instructions regardless. I was expecting to see a “Mrs Smith” recently and was startled to see the second wife of my former client, sitting in a meeting room waiting for me. She told me she had travelled a long way to see me in Harrogate and she hoped in the circumstances I could advise her about her marital difficulties with her new husband. I’m afraid she had a wasted trip. Had she told the truth from the outset, an appointment would not have been made for her. Of course I also had to keep her visit secret from my client, who I occasionally bump into in London.
Don’t forget that if the conflict process is subverted, solicitors are the ones left exposed – and could lose both clients. Even the slimmest possibility of a conflict should be acted upon by solicitors, who in certain circumstances must quickly make up their minds whether to act or not and what if anything it is possible to tell the potential client. It isn’t always clear cut and there are situations where there may appear to be a conflict but in fact there is not.
Recently, a would-be client arrived under a fictitious name and soon dissolved into tears. He said gathering the courage to see me and talk to a lawyer about his marriage was deeply painful, hence the pseudonym, but he had discovered his wife was having an affair with another man. I immediately asked him for his real name, and excused myself from the meeting room to carry out a conflict check. I then had to explain to the distressed man sitting in front of me that I was unable to advise him but was unable to say anything more. He knew his wife and the other man had seen another solicitor, and he immediately guessed the firm was involved. We were. Another solicitor in the firm was retained by them. I sympathised, but of course there was nothing I could do or say. He left the office in great distress. However carrying out the conflict check straightaway, despite having to interrupt the meeting, meant we could continue to represent our retained clients.
So how do you intercept a dastardly person who will pay a one-off appointment fee to get you off the case before it has even started? You should ensure that your conflict checks are as detailed and as thorough as they can be. Trust your gut instinct, which I find is usually right. Most spouses deliberately attempting to establish a conflict of interest aren’t difficult to spot: they insist on super-urgent appointments, but don’t seem unduly bothered about the advice and proposed fees. They nearly always seek confirmation that you can no longer accept instructions from their spouse.
How to deal with them? Experience lets me guess what they’re up to long before I meet them, and I treat them all as a challenge. The trick is to turn them into your client. After all, they will need a lawyer. It isn’t easy, not least if their own lawyer is the one who has put them up to it. But I assure you, impress them enough and they will soon realise that the reasons for trying to conflict you out are exactly the same reasons they should be instructing you.
This is an expanded version an article first published in Solicitors Journal, and is reproduced by kind permission.